Allan Hancock Community College District (PERB 0768E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS ALLAN HANCOCK
COMMUNITY COLLEGE 	DISTRICT
CHAPTER 	#251,
Charging 	Party,
v.
ALLAN HANCOCK COMMUNITY COLLEGE 	)
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2683
PERB 	Decision No. 	768
September 	20, 	1989
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Appearances: 	E. 	Luis Saenz, Attorney, 	for California School
Employees 	Association and 	its 	Allan 	Hancock Community 	College
District Chapter #251; 	Liebert, 	Cassidy & Frierson by Jeffrey
Sloan, 	Attorney, 	for Allan Hancock Community College District.
Before Hesse, 	Chairperson; 	Porter and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on appeal 	by the
California 	School 	Employees 	Association and 	its 	Chapter 	#251
(CSEA) 	of the Board agent's dismissal, 	attached hereto, 	of its
charge 	that 	the Allan Hancock Community College 	District
(District) 	violated section 3543.5(c) 	and, 	derivatively, 	(a) 	and
(b) 	of the Educational Employment Relations Act 	(EERA or Act).
We have 	reviewed the dismissal 	and, 	finding it 	free of
prejudicial 	error, 	adopt it as 	the decision of the Board itself.
ORDER
The unfair practice charge 	in Case No. 	LA-CE-2683 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Porter and 	Shank 	joined 	in this 	Decision.

STATE Of CALIFORNIA 	GEORGE 	DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Son Francisco Regional Office
177 Post Street Suite 900
San Francisco. CA 	94106-4737
(415)557-1350
April 14,1988
Doyle B. Newell
Director Research/Negotiations
CSEA & its Allan Hancock Community
College, Chapter #251
2045 Lundy Avenue
San Jose, CA 95131
George E. Howard, President
Allan Handock Joint Community
College District
800 South College Drive
Santa Maria, CA 	93454
Be: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
California School Employees Association and its Allan Hancock Community
College, Chapter #251 v. Allan Hancock Community College District,
Unfair Practice Charge No. LA-CE-2683
Dear Parties:
Pursuant to Public Employment Relations Board (PERB) Regulation section 32730,
a complaint will not be issued in the above-referenced case and the pending
charge is hereby dismissed because it fails to allege facts sufficient to
state a prima facie violation of the Educational Employment Relations Act
(EERA).1 The reasoning which underlies this decision follows.
On December 10, 1987 the California School Employees Association and Allan
Hancock Community College Chapter #251 (CSEA) filed an unfair practice charge
against the Allan Hancock Community College District (District) alleging
violation of EERA section 3543.5(c) and derivatively sections (a) and
(b). Mare specifically, CSEA alleges that the District refused to bargain in
good faith When it placed Ms. Ruth Malvarose in a new classification entitled
Fine Arts Assistant, Range 13.
On March 30, 1988, the regional attorney wrote to Doyle B. Newell,
representative of the Association and explained that the charge failed to
state a prima facie violation of EERA section 3543.5 (c) and derivatively
sections 3543.5 (a) and (b). 	The letter concluded that, unless the charge was
amended or withdrawn by April 	11 	1988, the allegations would be dismissed.
The letter is attached and incorporated by reference as though set forth in
full.
1References to the EERA are to Government Code sections 3540 et seq.
PERB Regulations are codified at California Administrative Code, Title 8.

Doyle B. Newell
George E. Howard
April 14, 1988
Page 2
On April 11, 1988, PERB received a letter from Attorney Luis Saenz,
representative of the Association. 	The letter, dated April 7, 1988, argues
that: the exclusive representative has a statutory right to negotiate the
effects of the employer's decision to reclassify a bargaining unit position
(Alum Bock Union Elementary School District (1983) 	PERB Decision No. 322.);
an exclusive representative may waive that statutory right by clear and
unmistakeable contract language; but, no subsection of Article 18 of the
parties' collective bargaining agreement suggests that the Association waived,
by clear and unmistakable language, its statutory right to negotiate the
effects of the District's decision to reclassify bargaining unit positions.
In Newman-Crows landing Unified School District (1982) PERB Decision No. 223,
the Board held that an exclusive representative alleging that the employer
refused to bargain "effects" must allege that it signified to the employer its
desire to negotiate the effects of the employer's decision in order to set
forth a violation of EERA, section 3543.5 (c). 	The 	request may consist of a
"general notice of interest in the effects of the 	. . . decision".
Charging Party has attached two exhibits to the Unfair Practice Charge which
consist of requests to bargain the employer's decision to reclassify
Ms. Malvarose's position. On October 12, 1987, Ms. Ida Richards, President of
the Association, directed a letter to Mr. Dennis Bethke, Director of Personnel
stating:
CSEA demands to negotiate the wages, hours and working
conditions of this position. 	(Exhibit 4.)
On November 4, 1987, Mr. Doyle Newell, the Association's Director of Research
and Negotiations, wrote to Mr. Bethke stating:
In response to the District's proposal set forth in
the memorandum dated October 14, 1987, CSEA
specifically demands to bargain on 	the "fine Arts
Position Reclassification." 	(Exhibit 6.)
Mr. Newell attached a three-part negotiating proposal to his letter of
November 4, 1987. 	It proposes that:- 	the salary level of other secretarial
classifications be increased; the increases be retroactive to the first date
on which the District created the Fine Arts Assistance classification; and,
the positions in the Secretarial Clerical and related classes be assigned a
37.5 work week.
The letter sent to PERB by Attorney Saenz, dated April 7, 1988, does not cure
the defects of the charge. 	Charging Party has neither alleged facts nor
provided information which suggest that it signified to the District, even in
general terms, its interest in negotiating the effects of the District's
reclassification decision and that the District failed/refused to negotiate.

Doyle B. Newell
George E. Howard
April 14, 1988
Page 3
Accordingly, for the reasons stated in this letter as well as that dated
March 30, 1988, described above, Charging Party has failed to allege a prima
facie violation of EERA section 3543.5 (c). The allegations are dismissed. 	No
Complaint will issue.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, you may obtain a
review of this dismissal of the charge by filing an appeal to the Board itself
within twenty (20) calendar days after service of this dismissal (California
Administrative Code, title 8, section 32635(a)). 	To be timely filed, the
original and five copies of such appeal must be actually received by the Board
itself before the close of business (5:00 p.m.) or sent by telegraph,
certified or Express United States mail postmarked no later than the last date
set for filing (section 32135). 	Code of Civil Procedure section 1013 shall
apply. The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
If you file a timely appeal of the refusal to issue a complaint, any other
party may file with the Board an original and five copies of a statement in
opposition within twenty calendar days following the date of service of the
appeal (section 32635(b)).
Service
All documents authorized to be filed herein must also be "served" upon all
parties to the proceeding, and a "proof of service" must accompany each copy
of a document served upon a party or filed with the Board itself. 	(See
section 32140 for the required contents and a sample form.) 	The document will
be considered properly "served" when personally delivered or deposited in the
first-class mail postage paid and properly addressed.
Extension of Time
A request for an extension of time in which to file a document with the Board
itself must be in writing and filed with the Board at the previously noted
address. 	A request for an extension must be filed at least three calendar
days before the expiration of the time required for filing the document. 	The
request must indicate good cause for and, if known, the position of each other
party regarding the extension, and shall be accompanied by proof of service of
the request upon each party (section 32132).

Doyle B. Newell
George E. Howard
April IA, 1988
Page 4
Final Date
If no appeal is filed within the specified time limits, the dismissal will
become final when the time limits have expired.
Sincerely,
John Spittler
Acting General Counsel
By	By
PETER HABERFELD)
Regional 	Attorney
Attachment

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Son Francisco Regional Office
177 Post Street, Suite 900
San Francisco, CA 	94108-4737
(413)557-1350
March 30, 1988
Doyle B. Newell
Director 	Research/Negotiations
CSEA & 	its Allan Hancock Community
College, Chapter #251
2045 Lundy Avenue
San Jose, CA 95131
Re: 	CSCA, 	Chapter #251 v. Allan Hancock Community College
District, 	Unfair Practice Charge No. LA-CE-2683
Dear Mr. Newell:
On December 10, 	1987 the California School Employees
Association and Allan Hancock Community College Chapter 	#251
(CSEA) 	filed an unfair practice charge against the Allan
Hancock Community College District 	(District) alleging
violation of EERA section 3543.5(c) and derivatively
sections (a) and (b). 	More specifically, CSEA alleges that the
District refused 	to bargain in good faith when it placed
Ms. 	Ruth Malvarose in a new classification entitled Fine Arts
Assistant, Range 13.
Allegations of the Charge:
The following facts are not in dispute. 	Ms. Malvarose notified
the District that she was performing duties in addition to
those contained in the 	job description of her position, Faculty
Secretary. 	She requested that her position be considered 	for
reclassification.
Personnel Services Director Dennis L. 	Bethke concurred in
Ms. Malvarose's request. 	He developed a classification
entitled Fine Arts Assistant and decided to compensate her 	in
the new position at range 13 of the salary schedule.
On September 24, 	1987, 	Bethke informed Ida Richards, 	President
of the CSEA chapter, 	of his decision and solicited the
organization's 	input. 	The Bethke letter stated that District
was presenting the 	information to CSEA in accordance with the
District's obligation under Article 18, 	section 18.3 of the

Doyle B. Newell
March 30, 1988
Page 2
parties' 	collective bargaining agreement. 	That provision
states:
CSEA shall be notified of all requests 	for
reclassification. 	CSEA shall have input in
the study and shall be consulted with regard
to the 	finding prior 	to any implementation
of the reclassification.
On October 2, 	1987, 	Ms. Richards responded by letter demanding
to negotiate the wages, hours and working conditions of the new
position. 	She 	stated that when the position is put in a newly
created classification, 	the District must do more than
"consult" about the change. 	Section 18.3, according to her
view, 	only applies when a 	"reclassification" takes place. 	CSEA
uses 	that term to describe placing a position in a pre-existing
classification.
The 	terms 	"classification" and 	"reclassification" are defined
in the contract. 	Section 18.6.1 states:
Classification means that each position in
the classified service shall have a
designated title, 	a regular minimum number
of assigned hours per day, days per week,
and the months per year, 	a specific
statement of the duties required to be
performed by the employees 	in each such
position, and the regular monthly salary
range 	for each such position. 	(Cal.Ed Code
section 88001).
Section 18.6.3 states:
Reclassification means the upgrading of a
position to a higher classification as a
result of the gradual 	increase of the duties
being performed by the 	incumbent 	in such
position. 	(Cal.Ed Code section 88001).
On October 9, 	1987, 	Bethke replied to Richards. 	He stated that
Ms. 	Malvarose will be placed in "working-out-of-classification
status effective October 1, 	1987. 	Also, 	she will be working a
37-hour work week and 	therefore will receive vacation and 	sick
leave accordingly. 	Bethke cited Article 9 which allows the
District to assign hours on a temporary basis.
On October 12, 	1987, Ms Richards wrote to Bethke invoking
Article 18, 	section 18.7, as authority for CSEA's insistence

Doyle B. Newell
March 30, 1988
Page 3
that 	the District negotiate concerning the new classification,
Richards asserted that section 18.7 applies because the
District is creating a new classification for Ms. 	Malvarose.
Section 18.7 states:
New classifications created or positions added
to classes shall be subject to negotiation
between the District and the CSCA to determine
if they are to be included in the bargaining
unit. 	Disputed cases shall be submitted to the
PERB and shall not be subjected to the grievance
procedures contained in this contract.
On October 14, 	1987, Bethke replied to Richards conceding
that section 18.7 of the contract requires the District to
negotiate concerning new classifications, but pointing out
that the obligation is limited to negotiating a specific
issue: 	whether the newly created position is to be included
in the bargaining unit. 	Bethke continued by stating that
the District agrees that the Fine Arts Assistant position
should be 	in the bargaining unit and therefore there 	is
nothing to bargain about.
On November 4, 1987, CSEA representative Doyle Newell, wrote
to Mr. Bethke asserting CSEA's position that it has a
statutory right to negotiate the wages, 	hours and terms of
conditions of employment of all reclassifications. 	He
cited, 	as authority, 	PERB's decision in California School
Employees Association v. 	Alum Rock Union Elementary School
District (1983) PERB decision No. 322. 	'.
The Newell letter 	(exhibit 6) had attached to it a
negotiating proposal submitted by CSEA to the District. 	It
proposes that the entire secretarial class of positions
receive an upward adjustment of 	four ranges on the current
salary schedule; 	the salary adjustment be retroactive to the
date on which Ms. 	Malvarose's position was reclassified;
and, all newly created positions in the Secretarial,
Clerical and related classes be assigned a 37.5 hour work
week.
Violations Alleged:
CSEA charges that the District: 	(1) unilaterally
reclassified the Faculty Secretary II position to Fine Arts
Assistant 	in violation of Government Code section 3543.5 	(c)

Doyle B. Newell
March 30, 1988
Page 4
and derivatively sections (a) and 	(b); 	(2) violated the
requirement contained in Section 18.3 	to consult with CSEA
when it reclassified Ms. 	Malvarose allegedly on
October 1, 	1987; 	(3) violated the requirement contained in
section 18.7 	to negotiate with CSEA when it refused to
negotiate on or reduce to writing any agreement between CSEA
and the 	District 	"which went beyond 	the mere inclusion of
the Fine Arts Assistance position from the present
bargaining unit represented by CSEA;" and, 	(4) refused to
negotiate on any of the proposals which have been attached
by Charging Party to its Exhibit 	6.
Applicable Legal Principles:
In determining whether a party has violated section
3543.5(c) of EERA, 	the PERB utilizes either the "per se" or
"totality of the conduct" test, 	depending on the specific
conduct 	involved and the effect of such conduct on the
negotiating process. 	Stockton Unified School District
(1980) PERB Decision No. 143. 	Unilateral changes are
considered 	"per se" violations if certain criteria are met.
Those criteria are: 	(1) the employer implemented a change
in policy concerning a matter within the scope of
representation, and 	(2) 	the change was implemented prior to
the employer notifying the exclusive representative and
giving it an opportunity to request negotiations. 	Walnut
Valley Unified School District 	(1981) PERB Decision No. 	160;
Grant Joint Unified High School District 	(1982) PERB
Decision No. 196.
In Grant, 	supra, PERB held that conduct which breaches a
collective bargaining agreement can also violate the duty to
bargain contained in EERA only if the employer's conduct
announces a 	"new policy of general application or continuing
effect." 	Otherwise, 	though remediable through the courts or
arbitration, 	the conduct does not violate the Act.
In Alum Rock, 	supra, 	PERB held that a District employer is
obligated to negotiate regarding: 	(1) 	the transfer of work
from one classification to another; 	(2) 	the retitling of
classifications; 	(3) all matters related to salaries,
including 	the 	salary ranges to which newly created
classifications are assigned; 	(4) 	the reassignment of
employees 	from existing classifications 	to different or
newly created classifications; 	(5) 	the allocation of
positions to classifications; and, 	(6) the effects, if any,

Doyle B. Newell
March 30, 1988
Page 5
on terms and conditions of employment of those
classification decisions. 	(Slip Op. at p. 23.)
Analysis:
Charging party has 	failed to allege 	facts 	setting 	forth
elements of a prima 	facie violation of EERA section
3543.5(c) and derivatively sections 	(a) and (b). 	The
allegations do not 	suggest that a policy existed previously
which entitled CSEA to negotiate with the 	District prior to
the 	latter's 	implementation of a reclassification decision.
The previous policy is set 	forth unambiguously in Article
18. 	First, 	the definition of "reclassification" contained
in Section 18.6.3 	includes upgrading to both existing and
new classifications. 	Second, 	section 18.3 requires the
District to consult, rather than negotiate, prior to its
implementation of the reclassification decision. 	The
requirement applies whether the position is being upgraded
to a new or existing classification. 	Third, 	the previous
policy is partially embodied in Section 18.7. 	It requires
that the parties negotiate whether the new classification is
to be included in the bargaining unit. 	That issue was not
contested here: both parties agreed that Ms. Malvarose's
position remain in the unit.
Charging Party argues that the term "implementation" 	in
Section 18.3 means 	something less than announcing a
reclassified position that has: a title; a regular minimum
number of assigned hours per day, 	days per week, 	months per
year; 	a specific statement of the duties required to be
performed by the employee in the new position; and, 	the
regular monthly salary range for the position. 	In its view,
at 	least the salary range remained to be established during
the implementation phase.
This argument 	is not persuasive. 	Despite requests 	from the
regional attorney, 	CSEA has not alleged any facts or
presented any information regarding the 	text of 	the
contract, bargainin	- 	g history or previous practice which
suggests that the language of the Article 18, 	quoted above,
has been interpreted in a manner consistent with Charging
Party's arguments. 	Without allegations or evidence
suggesting that a previous policy existed which required the
District to negotiate all of part of 	its decision to
reclassify a position, 	the charge fails to allege a
unilateral change of a policy. 	CSEA has also alleged that
the District violated section 18.3 of the collective

Doyle B. Newell
March 30, 1988
Page 6
bargaining agreement when 	it allegedly implemented
unilaterally the reclassification of Ms. Malvarose on
October 1, 1987. 	By letter, dated February 23, 1988, Mr.
Doyle Newell, representative of CSEA, informed the regional
attorney that her reclassification was permanent as of
October 1 and, 	further, 	that the implementation preceded
provision by the District to CSEA of notice and opportunity
to consult and/or bargain. 	However, 	CSEA does not dispute
the statements contained in its Exhibit 3, 	attached to the
charge. 	That exhibit consists of a letter 	from Personnel
Services Director Bethke, dated October 9, 	1987, which
explains that Ms. Malvarose, pending permanent
reclassification,
will be placed 	in working-out-of-classification
status effective October 	1, 	1987 	. . . .
Thus, 	CSEA has presented evidence that the change in
Ms. Malvarose's pay on October 1, 	1987 did not reflect
permanent 	implementation of the decision to reclassify her
position. 	The allegations do not suggest that the
reclassification was a 	fait accompli prior to the opportunity
provided by the District to consult regarding its decision to
reclassify Ms. Malvarose.
Charging Party also alleges that the District refused to
negotiate or reduce to writing any agreement between CSEA and
the District 	"which went beyond the mere inclusion of the Fine
Arts Assistant position in the unit." 	CSEA argues here that
Section 18.7 	imposes an obligation on the District beyond
negotiating whether the new classification belongs 	in the unit.
CSEA's argument is not persuasive. 	As discussed above. 	Section
18.7 is unambiguous. 	It only requires that the parties
negotiate whether to include the new position in the bargaining
unit.
Finally, 	CSEA alleges that 	the District refused to negotiate
concerning the three proposals attached to exhibit 6, 	described
above, 	and that this refusal constitutes violation of its
obligation to bargain concerning mandatory subjects.
This argument is not persuasive. 	The three proposals concern
the reclassification of positions in addition to the Fine Arts
Assistant position. 	As discussed above, 	allegations and
evidence presented by CSEA suggest that 	the contract contains a
policy which merely requires the District to consult, 	not
negotiate, 	regarding the District's reclassification decision.

Doyle B. Newell
March 30, 1988
Page 7
For these reasons, 	the charge as presently written does not
state a prima 	facie violation of EERA sections 3543.5(c) and
derivatively (a) and 	(b). 	If you feel that there are any
factual 	inaccuracies in this letter or any additional 	facts
which would correct the deficiencies explained above, 	please
amend the charge accordingly. 	The amended charge should be
prepared on a 	standard PERB unfair practice charge 	form clearly
labeled First Amended Charge, 	contain all the facts and
allegations you wish to make, 	and be signed under penalty of
perjury by the charging party. 	The amended charge must be
served on the respondent and 	the original proof of service must
be 	filed with PERB. 	If I do not receive an amended charge or
withdrawal from you before April 11, 	1988, 	I shall dismiss your
charge. 	If you have any questions on how to proceed, 	please
call me at 	(415) 557-1350.
Sincerely,
PETER HABERFELD
Regional 	Attorney